A portion of the 5th amendment of the U.S. Constitution, often called
the takings clause, prohibits the taking of private property for “a
public purpose” without just compensation to the property owner.
Historically, the 14th amendment of the U.S. Constitution has been
interpreted as making this standard applicable to the states. Section
17, Article 1 of the Texas Constitution prohibits a person’s land from
being “taken, damaged, or destroyed” for public use without consent or
adequate compensation.

In 2005, the U.S. Supreme Court, by a 5-4 vote, issued a ruling that a
public entity is justified in condemning private property for the sake
of furthering “economic development”, even if the beneficiary is another
private entity. Justice Sandra Day O’Connor, an Arizona rancher born in
Texas, wrote in her dissent that the majority’s decision eliminates
“any distinction between public and private use of property”. This case,
known commonly as the Kelo decision, alerted both states and property
owners to the potential abuses by governmental authorities in their
execution of eminent domain powers.

Position

Largely in response to the Kelo decision, property rights groups in
Texas, led by the Farm Bureau, initiated a grassroots campaign to extend
the scope and definition of private property protection that is
described by statute. As a result of that effort, the 2007 Texas
legislature overwhelmingly passed a strong bill to protect private
property rights in eminent domain proceedings. STPRA participated in the
process by being the point of contact with the South Texas legislative
delegation. However, perhaps in fear of harming the then-planned
Trans-Texas Corridor, the Governor vetoed the legislation.

The Farm Bureau, STPRA, and other property rights groups, including the
Texas Wildlife Association and the Texas and Southwestern Cattle Raisers
Association, resolved to promote similar legislation in the 2009
legislative session and to do it soon enough to allow an over-ride of a
gubernatorial veto. Unfortunately, the 2009 version of the 2007 bill
never made it out of the session.

What did pass the legislature in 2009 was a proposed Texas
constitutional amendment, Proposition 11, which was overwhelmingly
approved by voters on November 3, 2009. This amendment more clearly
defines the public purposes for which eminent domain authority can be
used. STPRA supported passage of Prop. 11, however, the amendment is too
general to fully define the conditions, circumstances, and procedures
under which condemning authorities can use their powers of eminent
domain.

As mentioned, STPRA, in concert with the Farm Bureau and other allies
on the Ag Council, played an integral part in passing legislative
reform of eminent domain in 2007. In the 2009 and 2011 sessions, STPRA
contributed to the cause through communications with legislators and
testimony before committees, but those efforts failed in 2009. In 2011,
S.B. 18 was finally successful in codifying the following provisions:

ü Requiring a public vote of an elected body before eminent domain proceedings can be initiatedü Demanding that a bona fide offer be made based on market valueü Requiring due process and the release of information in condemnation and compensation proceedingsü Allowing repurchase of the property by the original owner at the
original price he/she was paid if the use for which the property was
condemned is not begun before the 10th anniversary of its purchase ü Stipulating that compensation value should be determined by taking
into account any diminished access to the remaining property

Future Actions

This session, the Legislature failed to pass legislation to comply with
the “Denbury” Supreme Court decision that stated that pipelines must
document their common carrier status. STPRA will continue working with
its allies to address outstanding issues related to “necessity of public
use” definitions and the prevention of abuses by power and fuel line
companies.